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Collier v. Dorman

116 N.Y.S. 736 Court N.Y. App. Term Decision date 1909-05-07 English

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p. 736
COLLIER et al. v. DORMAN.
(Supreme Court, Appellate Term.
May 7, 1909.)

Headnote

'Trial (§ 396[1] )—Counterclaim—Amount of Recovery.
In an action for installments due on contracts for sale of books, $4.50 was conceded to be due. Defendant filed a counterclaim for $22 for books not as represented. Judgment was given for defendant for $22. Held, there was no basis for the judgment rendered.
[Ed. Note.—For other cases, see Trial, Cent Dig. § 938; Dec. Dig. § 396.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Peter F. Collier and another against Benjamin N. Dorman. From a judgment for defendant, plaintiffs appeal.
Reversed, and new trial ordered.
Argued before GILDERSLEEVE, P. J., and DAYTON, and GOFF, JJ.
John T. Fenlon, for appellants.
David Steinhardt, for respondent.

Action brought to recover $4.50 claimed to be due as installments upon two contracts for the purchase by defendant ■of certain books. Defendant counterclaimed $22 paid by him for books which he alleged were not in accordance with representations made at the time of their sale. The court, without a jury, gave judgment for -$22 in favor of the defendant.

p. 737
The contract of October, 1908, was for Hugo’s Foreign Romances, 39 volumes, $43. The contract of November, 1908, was for R. L. Stevenson, 8 volumes, and A. Lincoln, 8 volumes, $30. Defendant did not examine the books until three weeks after their delivery, and then complained of the “Foreign Romances” and "Stevenson,” but was satisfied with the “Lincoln.” Plaintiffs said “all would be fixed up.” These books were not returned, and plaintiff still has them.

The evidence tends to show that, before purchasing, the books or duplicates were examined by defendant. The October contract, in evidence, shows a payment of $1.50, and a payment of $8 on the November contract. There is no other evidence of payments. It is therefore difficult to understand the calculation upon which $33 was found due to defendant. It was conceded that the $4.50 sued for had not been paid. The record furnishes no basis for the judgment rendered.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event.